AnnArbor.com is reporting that the Washtenaw County jury acquitted former football walk-on Mike Milano of felonious assault on hockey defenseman Steve Kampfer, instead convicting Milano of aggravated assault, a misdemeanor.

I won’t opine on the ruling because I have no clue on the law here or what was argued. It’s clear though that the judge wasn’t happy with the jury’s decision:

Milano faces up to one year in jail on the misdemeanor conviction when he is sentenced Dec. 3.

But that doesn’t appear likely, given a rare statement by Circuit Judge David Swartz, who said he believes Milano is innocent of both counts.

After dismissing the jury, Swartz looked toward Milano and said: “For what it’s worth, I’d find the defendant not guilty and recommend that you file for an order to have it expunged, which I’ll be pleased to sign.”

Would love to hear a lawyer’s take on that. Can a circuit judge simply state that they don’t like a ruling and honor a request to have a crime expunged from the defendant’s record?

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Not sure in a criminal case, but I doubt it. In a civil case, a judge can issue a directed verdict at the close of evidence and not even let the jury have a say, or issue a JNOV (judgment notwithstanding the verdict) and overrule the jury, which is rare, but does happen from time-to-time.

While a Judge can direct a verdict in the absence of evidence – if believed by the jury – sufficient to convict, he cannot make credibility determinations and cannot decide “fact” issues for the jury.

In these “he said she said” cases – it is the jury’s call on who to believe and in essence the judge was giving his opinion as someone with no more authority to decide those facts than an alternate juror.

With respect to the expungement – I am not sure of the law in Michigan – but in Illinois – arrests can be expunged where there is no conviction and certain other criteria are met.

wThus even though he could not prevent a guilty verdict, Where the judge’s determination of the case will make a difference is in terms of sentencing. Milano will no doubt be given the lightest possible sentence based upon the judge’s statement – and he may even be able to avoid a conviction if Michigan law affords for some form of what we call court supervision in Illinois.

If no conviction is entered – he may very well be eligible for expungement down the road.

Kind of makes you wonder why, if the judge feels that way, he didn’t just grant a directed verdict [made after the close of prosecution’s case, arguing that it didn’t meet its burden of proof]. A defendant doesn’t need even need to ask for it, but it’s asked for in every criminal proceeding I’ve ever seen.

I think the judge likely didn’t find that Milano’s actions to be “aggrevated” assault, but then again, I wasn’t there and didn’t see the proofs.